Do police officers have too much or too little discretion?
A question posted recently on Quora asked, “Do police officers have too much or too little discretion?” Police officer Christopher Hawk gave his opinion on the topic, below. Check it out and add your own thoughts in our comments section.
Officer discretion is a powerful, basic tool in policing. Removing officer discretion by creating "must arrest" offenses would result in too many unnecessary arrests, while creating "can't arrest" offenses would result in people ignoring the existing laws.
First, who would decide which crimes are "must arrest" or "can't arrest”? One of the reasons police have discretion is so they may take the totality of the circumstances into consideration while investigating a particular incident to help determine the need for an arrest. While many crimes are fairly straightforward, there are also those investigations which require consideration of other issues.
For instance, imagine a law requiring that all people who are caught driving with a revoked driver's license MUST be arrested. Now, imagine that you stop a car with a revoked driver, but the driver is taking his/her injured child to the hospital emergency room. Do you think it would be appropriate to arrest the driver in this situation?
Now, imagine that police aren't allowed to arrest anyone for driving with a revoked driver's license— officers may only cite the driver and tow the car. What is the appropriate course of action when you have stopped a driver who has ten prior Driving While Revoked citations on his/her record, but has decided to drive to the corner store for a six-pack of beer?
An officer might make a custodial arrest for an offense knowing that the prosecutor probably won't go forward with charges. This arrest can still be useful for a variety of reasons:
• The offender is a public nuisance and needs to be removed from the street
• Other people watching the offender know that arrest is a viable option
• A night sitting in jail, followed by a morning in arraignment court can be a valuable lesson to a low-level offender
An officer might also investigate an incident where all the technical elements of an offense have been met, but still decide not to arrest a person because:
• Mitigating factors — perhaps the offender did something that was technically illegal, but had a reasonable explanation for it?
• Additional investigation needed — while the officer has proof of the basic elements of a crime, further investigation may be needed to determine additional crimes or conspirators.
• Overriding circumstances — A suspect may have committed a particular crime, but there are other reasons why an arrest is not made (young children in the home with no available child care, consideration of manpower issues, etc).
The second part of the question asks what alternatives are available, rather than using discretion? Someone might want to create a flowsheet of some type for an offense, but it would be incredibly difficult to create a flowsheet or matrix which could take all of the various issues of an incident into consideration.
Some agencies have what's called a "felony review" process, wherein officers contact an on-call prosecutor prior to making a felony arrest. The prosecutor reviews the facts of the case and tells the officer whether to make a custodial arrest or release the suspect and file a report. I know some officers who work under this process and they have mixed views about it.